This thesis considers interpretive provisions in human rights legislation in the United Kingdom (UK), New Zealand and two Australian jurisdictions: the Australian Capital Territory and the State of Victoria. It deals with the relationship between certain common law interpretive principles which protect human rights and the rules under the interpretive provisions. It also considers what effect the interpretive provisions have on the overall approach to statutory interpretation, particularly in terms of their impact on the roles of intention and purpose. One of the themes of the thesis is that it is possible to identify a common methodology for the application of the various interpretive provisions. This is facilitated by an emphasis on the concept of purpose, which is flexible and capable of being identified and applied at higher levels of abstraction than the concept of intention as commonly applied by the courts. Despite this common methodology, the results of attempts at legislative rights-consistent interpretation in the relevant jurisdictions differ. We shall see that the UK courts have taken a broader interpretive approach than have their New Zealand and Australian counterparts. This will be explained by reference to the respective contexts of the human rights legislation in each jurisdiction, particularly in terms of legislative history. It will be argued that the purpose of the UK legislation to provide remedies in domestic courts for breaches of the European Convention on Human Rights provides the basis for the UK courts’ approach. The absence of this factor is the primary point of distinction between the UK on the one hand, and New Zealand and Australia on the other, though other issues will be explored. Finally, while as a matter of the interpretation of the UK legislation, and especially of the relevant interpretive provision, the approach of the UK courts is defensible, the significant risk to the principle of legal certainty which it poses will be highlighted.

Over the course of the 20th and 21st Centuries the judiciary have increasingly made decisions that have affected the substantive content and the procedural implementation of public policy. The aim of this thesis is to provide an explanation for this political behaviour in judges by introducing the Legislative Politicisation of the Judiciary Theory to the debate. The theory proposes that the key independent causal variable is the language of Parliamentary legislation. The argument is that as legislation has been increasingly used to delegate power from Parliament to its various agents, the language used has become more indeterminate in order to enable discretion. Such indeterminacy creates an institutional problem where the orders of the sovereign Parliament are not clear, and to resolve this uncertainty in the Rule of Law the judges must intervene. The political behaviour of judges is therefore stimulated by a change in the legislative supply-side rather than a change in the behavioural demand-side, and the judges are acting as professional technocrats charged with ensuring the efficacious implementation of Parliamentary legislation. A new discourse analysis methodology has been created for this thesis that provides evidence of change in the language of legislation between 1920 and 2010. A total of 8,328 sections of primary and secondary legislation have been hand-coded, with results showing that 3% of sections in 1920 (21 sections in real terms) were “Henry VIIIth clauses”, where power to make new law was delegated by Parliament; by 2010 this had increased to 16% (400 sections in real terms).

Sunset clauses are a commonly used statutory provision related to the temporary duration of various laws. Such clauses are scattered throughout the statute books. This thesis aims to shed light on the constitutional value of such clauses, in order to value them from the perspective of the separation of powers and the rule of law. We have an extant amount of literature on sunset clauses, especially regarding their utility in the United States. In the United Kingdom, we have a limited analysis with respect to specific fields, including emergency legislation. However, we lack a comprehensive analysis with regard to their constitutional value. This thesis’s analysis is conducted in three parts, separated into the historical, the positive, and the normative. All three parts of this thesis are interdependent, and the analysis of each subsequent part builds on the conclusion of its antecedent. The first part investigates the historical development of sunset clauses since the first Parliament in England. The positive analysis examines the contemporary utility of sunset clauses. Finally, the normative evaluation examines their interaction with several models of separation of powers as it values their impact on the rule of law. Depending on the separation of power model, such clauses play a role in the system of checks and balances. On the one hand, they impact the institutional relationship between the executive and legislative branches. On the other hand, they influence the interaction between the legislature and the courts. Although I acknowledge that their legislative use in limiting human rights diminishes the rule of law, they might have the exact opposite effect: on several occasions in the past, they were used to advance the rule of law, including the adoption of innovative legislation and the annulment of the death penalty. Indeed, this thesis attests to the constitutional value of sunset clauses.

While the United Kingdom has a general commitment to religious freedom, there is currently very little written on what this commitment ought to mean for religious organizations. This thesis contributes to religious freedom literature by considering when United Kingdom law ought to apply to religious organizations. It answers this question by exploring certain potential conflicts between United Kingdom law and religious organizations paying particular attention to those that are under-examined and where the possibility of differential treatment is strongest. The thesis is divided into three parts. Part One consists of Chapter One and sets out the doctrinal and theoretical foundations of religious freedom. Here the thesis accepts that autonomy is the liberal normative justification for religious freedom. Part Two consists of Chapters Two to Chapter Seven and examines the interaction between United Kingdom law and religious organizations in six contexts: employment; the provision of goods and services; membership admission; internal discipline, internal property disputes; and family matters. Each chapter in Part Two is divided into two parts. The first part considers the legal doctrine that applies to religious organizations in that context. It then considers whether that approach can be justified in light of the commitment to religious freedom and autonomy identified in Part One. Part Three consists of the final chapter, Chapter Eight. This chapter uses the conclusions from the preceding doctrinal chapters to suggest a general approach for determining when law should apply to religious organizations. The thesis concludes that a contextual approach, that considers the often competing interests involved, is the best way of determining when law should apply to religious organizations. Such consideration ought to pay special attention to the importance of the particular activity to ensuring that the option of a religious way of life is available.

The thesis is a comparative legal analysis of environmental principles in environmental law. Environmental principles are novel concepts in environmental law and they have a high profile in environmental law scholarship. This high profile is promoted by two factors – the high hopes that environmental law scholars have for environmental principles, and the increasing prevalence of environmental principles in legal systems, particularly in case law. This thesis analyses the latter, mapping doctrinal developments involving environmental principles in two jurisdictions and court systems – the courts of the European Union and the New South Wales Land and Environment Court. This doctrinal mapping has both narrow and broad aims. Narrowly, it identifies the legal roles in fact taken on by environmental principles within legal systems. Broadly, and building on this assessment, it responds to scholarly hopes that environmental principles (can) perform a range of significant roles in environmental law, including solving both environmental problems and legal problems in environmental law scholarship. These hopes are based on assumptions about environmental principles that have methodological weaknesses, including that environmental principles are universal and that they fit pre-existing models of ‘legal principles’ drawn from other areas of legal scholarship. The thesis exposes these methodological problems and concludes that environmental principles are not panaceas for pressing and perceived problems in environmental law. It does this by showing that the legal roles of environmental principles, which are significant in environmental law and its current evolution, can only be understood by closely analysing the legal cultures in which they feature. This is a conclusion for environmental law scholarship generally – while environmental issues and problems may be urgent and often global, legal analysis of the law that applies to those problems requires close engagement with legal systems and cultures, as they are and as they develop.

The impressive growth of antidiscrimination law in liberal democracies in the past few decades belies the inadequacy of the normative bases on which it has been sought to be justified. Popular ideals such as rationality, equality and dignity have been unsuccessful in providing a coherent liberal framework for the fundamental aspects of the practice of antidiscrimination law. In this thesis, I have argued that a unified normative framework comprising autonomy and dignity-as-autonomy does a markedly better job of justifying the most fundamental aspects of these laws. The ideal of personal autonomy is understood here as a principle that seeks to guarantee an adequate range of valuable options to individuals. Dignity-as-autonomy is understood to be an expressive norm, which forbids certain persons from expressing contempt for the autonomy of another. These ideals have different forms: autonomy is a non-action-regarding principle, while dignity-as-autonomy is action-regarding. They are also distinct substantively: it is often possible to violate one of them without affecting the other. When these ideals make incompatible demands, I argue that those made by autonomy should prevail. Mandating positive action and reasonable accommodation on the one hand, and prohibiting indirect discrimination and harassment on the other, are essential features of a model of antidiscrimination law based on this framework. Further, under this framework, antidiscrimination law is not vulnerable to objections such as ‘levelling down’ and responds well to claims of discrimination on ‘intersectional grounds’. Furthermore, it is not essential to find an ‘appropriate comparator’ in order to prove discrimination. This model also explains when, and under what conditions, can some forms of discrimination be ‘justified’. Finally, on an autonomy-based model, antidiscrimination law is only one of several complementary tools that should be employed to protect and promote personal autonomy.

This thesis examines the views of freedoms of press and speech held by the twelve earliest justices of the U.S. Supreme Court, as the Sedition Act of 1798 raised their earliest First Amendment questions including the breadth of those freedoms and of seditious libel. The thesis discusses three aspects of the early justices' views, which add to existing studies. First, the context of those justices' views was growing challenges to the restrictive Blackstone and Mansfield definition of freedom of press as only freedom from prior restraint (licensing) and as not also freedom from subsequent restraint such as seditious libel prosecution. Those challenges were reflected in broad language protecting freedoms of press and speech, and in the absence of language stating that the English common law of rights or of seditious libel was left unaltered. That crucial context of growing challenges has not been detailed in existing literature. (Chapter 3.) Second, the views of each early justice on press and speech are chronicled for the period 1789-1798. That discloses express commitments to those freedoms, which are absent from existing literature, and no adoption of the Blackstone definition before the 1798 crisis. (Chapters 4-5.) Third, the cases and reasoning of the six sitting justices upholding the Sedition Act of 1798 are chronicled and assessed, along with the views of the six remaining justices. That reveals that most remaining justices and also a significant minority within the Federalist party rejected the Sedition Act. Yet positions on the Sedition Act have been only cursorily discussed for four sitting justices and have been overlooked for the other eight justices, as well as for the Federalist party's minority, for the critical period 1798-1800. (Chapters 6-7.) The thesis proposes reasons for that divergence between the pre-1798 commitment of all justices to freedoms of press and speech, and the support given by most sitting justices to the Sedition Act, in contrast to apparent opposition by most remaining justices. The primary reasons are their opposing positions on several connected issues: the extent of rights to dissent, the challenges to the Blackstone definition and to seditious libel, the effect of new state and federal constitutions on seditious libel and on common law rights, strength of attachment to freedoms of press and speech and to seditious libel, and most sitting justices' changes of position to embrace the Blackstone definition. The thesis calls into question conventional views in existing literature on each of those three aspects. First, Levy and others express the dominant view that freedom of press in state declarations of rights and the First Amendment 'was used in its prevailing common law or Blackstonian sense to mean a guarantee against previous restraints and a subjection to subsequent restraints for licentious or seditious abuse,' so that contrary evidence 'does not exist,' and that 'no other definition of freedom of the press by anyone anywhere in America before 1798' existed. Instead, opposition to the essence of seditious libel had been mounting over the decades. Second, the early justices are usually portrayed as having nothing to say about freedoms of press and speech before 1798. Instead, nearly all exhibited commitment to those freedoms before that crucial year, though half the early justices upheld the Sedition Act during 1798-1800. Third, the Federalist party, the early justices, and the states except Virginia and Kentucky are all usually described as unanimously supporting the Sedition Act. Instead, the Federalists divided over the Act, and the early justices did as well, with an unrecognized but significant minority of the party, and nearly half of the early justices, opposing the Sedition Act, as did several additional states.

This thesis explores the roles played by implied constitutional principles in fundamental rights cases in the common law jurisdictions of Canada, Australia, the Commonwealth Caribbean, and the United Kingdom. The two principles selected for this research are the separation of powers and the rule of law, both of which are relied upon in courts in common law states. The thesis examines the types of cases in which such principles are used, the possible reasons for the appeal of these principles, and the functions that they play in fundamental rights adjudication. The thesis begins with a brief discussion of the applications of the rule of law and the separation of powers, outlining the content of these principles as applied by the courts. However, the bulk of the analysis throughout the thesis is concerned with a thematic study of the functions played by the principles. It is argued that the principles are used as interpretative aids, as independent grounds for invalidating legislation, and as gateways to comparative legal analysis. The thesis ends by showing the necessary preliminary work that must be undertaken in order to engage in a thorough normative analysis of the use of implied principles in rights adjudication. Throughout the thesis, several themes are identified as key to our understanding of the functions played by implied principles in the cases discussed. One such theme is legitimization, specifically the role the principles play in the attempt to legitimize arguments, state institutions (particularly the courts), and the state itself. The theme of institutional self-protection also arises; it is evident in the use of principles to protect the jurisdictional sphere of the courts. The analysis of the operation of implied constitutional principles also highlights the legacy of Empire and the deployment of traditional principles to signal the maintenance of democratic traditions and institutions.

The present DPhil research attempts to develop an appropriate method for the historiography of ideas by taking into consideration cultural, linguistic and socio-political limitations and obstacles to free thinking in a predominantly closed society like Qajar Iran. By applying such a method the study then investigates the history of the idea of freedom in Iran during one of the most important periods in the evolution of this concept. The research method is grounded in a hermeneutical interpretation of Collingwood's logic of question and answer. It also employs MacCallum's meta-theoretical frame of analysis which states that freedom is always of something (an agent or agents), from something (conditions), to do something (actions). Using this methodological framework, the research shows how most locutions about freedom uttered in the last century of the Qajar period were formed within the horizon of the question of decline and were somehow related to remedy such situations. It then explores how late Qajar interpretations of the three variables of freedom manifest themselves in the socio-political life of early 20th century Iran. During the first constitutional period (August 1906-June 1908), the major concern of the first majlis was to establish the rule of law. In legislating the constitution and its supplement, the majority of the majlis believed that the main obstacle to freedom was arbitrary rule. Therefore, they endeavoured to restrain the government’s illegal and arbitrary interferences in the people's freedom. However, they did not develop a rational criterion for identifying legitimate and justifiable legal interferences. During the second constitutional period (July 1909– February 1921), the main concern of the second majlis was to restrain chaos and to strengthen the central government in order to put an end to domestic insecurity and foreign threats. To rectify such a situation, the majlis empowered the government to interfere even in the freedoms guaranteed by the constitution. As a result, the situation began to turn from chaos towards arbitrary rule. The research also argues that in most of their interpretations of the aim of freedom, constitutionalists considered an action permissible only if it was compatible with public interest as well as the material and spiritual progress of individuals and society. Theoretically, the aim of freedom could not have been the doing of an action that harmed another person or violated his/her freedom. Furthermore, 'the right to be wrong,' even if it harmed no one, was never defended. Nonetheless, in practice, freedom turned into chaos and licence in both the first and in the second constitutional periods. Finally, this study investigates how the Iranian pioneers of the freedom-seeking movement responded to the question of the eligibility of the agent of freedom, and the question of the equality of agents in having freedom. Iranian society was taking its first steps in experiencing the rule of law and had a long way to go to rectify its discriminatory culture and to establish equal rights. In such conditions, accepting a set of equal fundamental rights for all Iranians should be considered a great achievement for the constitutional movement.

What are the possible bases for the authority of the Australian Constitution? Why should people and judges ever obey the text of the Constitution? The developing tools of analytical jurisprudence assist in answering these questions. Despite its currency, the concept of "sovereignty" provides little assistance in understanding how law provides reasons for action. The concept of authority is more useful. The text of the Australian Constitution has authority in that it provides presumptive reasons for action, overruled when they appear sufficiently erroneous on a cursory examination. The Constitution is part of the Australian legal system. A legal system is normally identified partly by moral norms. These moral norms themselves require that legal systems also be identified where possible by reference to the directives of a previous de facto authority - even when that previous authority no longer has power to make new legal norms. A legal system will be "legitimate" if any improvement to be achieved by revolution would be outweighed by the uncertainty revolution creates. Against this theoretical background, various theories about the Constitution's authority can be assessed. Although the enactment of the Constitution by the Imperial Parliament provides the Constitution with legal authority, it does not confer moral legitimacy. Contrary to a growing judicial and academic consensus in Australia, the Constitution's legitimate authority is not derived from the "will of the people". Nor is it derived from the Constitution's Founders. The will of the people cannot be identified reliably, and wound not provide sufficient reasons for action. The Constitution does embody a federal compact between the colonies. Because it is worthwhile to keep political promises, the polities of the States should fulfil this compact, even though the compact only imposes weak obligations on the Commonwealth. Other possible bases for the Constitution's authority are also inadequate. These include claims that judges are bound to apply the Constitution because their authority is based upon it; that the Constitution embodies "associate obligations", and that the Constitution isa commitment to protect individual rights and democracy. Instead the Constitution has legitimate authority principally because it coordinates individual action towards desirable goals. The Australian Constitution settles the location of authority by authority.